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The First Amendment in the 21st Century | BackgroundChecks.org

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"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

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Express yourself!
Say what you want!
Read the newspaper!
Choose any religion!
Make a petition!

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Freedom of speech

Freedom of the press

Freedom of religion

Freedom to petition the government

Freedom of expression

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This over the arguments about  Kaepernick being fired because he was kneeling at the flag over police brutality.

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In this Aug. 8, 2018, file photo by The Associated Press, a mobile phone displays a user's travels using Google Maps in New York. Google attracted concern about its continuous surveillance of users after The Associated Press reported that it was tracking people's movements whether they like it or not. (AP Photo/Seth Wenig, Reprinted with permission from The Associated Press.)

First Amendment threats and defenses have, for much of the past 100 years, largely focused on protecting individual speech - the rights of any one of us to express ourselves without interference or punishment by the government.

Not to be too glib but, oh, those were the days! This glee is due, in no small part, to the degree that individual speech and press rights triumphed in that era. But looking into this new year, that situation - and those victories - may be more nostalgia than norm. There is increasing danger to our core freedoms from what I'll call "systemic" challenges, which often appear focused on other issues, but which carry a First Amendment impact, if not wallop.

We've opened the doors to systematic surveillance through social media, smart phones, drones

The increasing public and commercial use of drones raise issues of noise, public safety and congestion in the airways - but also questions about what on-board cameras see and record that go far beyond earlier "peeping Tom" worries.

Consider a new network of drones constantly crisscrossing the skies over your hometown, constantly sending video of the passing scene to the insatiable maw of computer storage. Combine that record with facial recognition software, vehicle tracking devices and surveillance cameras that can ID license plates from miles away and it's but a small step to government discovery of who we meet, where and when, with resulting impact on the right of assembly or association.

We've known for some time there's a running joke, in national security and spy circles in this country and elsewhere, that we're now doing most of the surveillance work they used to do simply by living our lives on social media. Add the abilities of artificial intelligence to collect, collate and match social media and online data about any one of us and the kind of "anonymous" speech that produced the Federalist Papers is ever more nonexistent.

Put another way, George Orwell's draconian "Big Brother" presence was predicated on government installing a device in every home - and life - to observe each of us. In 2019, we're the ones installing the devices. Not just at home, but 24/7 in pockets and purses through smart phones, watches and the like.

Supreme Court pushes back on technological threat to citizen rights

In 2018, in two decisions involving GPS and cell phones, the U.S. Supreme Court pushed back on this new technological threat.

Chief Justice John Roberts said that cell phone location information is a "near perfect" tool for government surveillance, analogous to an electronic monitoring ankle bracelet. "The time-stamped data provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious and sexual associations,'" Roberts wrote.

Try being a reporter, under such involuntary transparency in the future, attempting to meet secretly with a source about government corruption or official misconduct or a botched criminal investigation or an undisclosed, invasive national security policy. Good luck.

Threats to freedom of the press arise with concerns over fakery and distortions

Let's round up this Pandora's box assembly of threats with a look at the 2020 election cycle. Not only will legitimate reports by a free press be mixed in with mis- and disinformation, a new technological threat challenges the adage that "seeing in believing."

What's included in "involuntary synthetic imagery" (a mouthful of a title) is the sinister possibility of videos that take real situations and seamlessly "paste" faces of politicians and others onto actual participants. Imagine misleading or embarrassing video that's nearly impossible for most to distinguish from the real thing. Tragically, such fakery already has invaded our lives thanks to what's known as "deepfake" porn.

How do we square such "deepfake" videos with First Amendment law, which - with the exceptions when such fake video clearly is being used for extortion or blackmail - would tend to side with free expression and with those who create such works? When would satire cross the line into defamation or intentional infliction of emotional distress - two traditional, but often expensive, time-consuming legal tools available to those who claim injury from such fakery?

And what of news consumers, already besieged by fakery on social media, claims of bias in news reporting by various outlets old and new, photo and video edits that distort, who already have a deep distrust of much of what they see, hear and read?

Despite all this, not the entire look into 2019 is glum. News consumers have more tools to identify misleading items. The fact-checking industry can be paired with "trust" projects and background programs - such as (self-promotion alert!) the Freedom Forum Institute's " Newstrition" tool.

More of us than ever appear concerned about our First Amendment rights than at any time in the past 25 years. Let's keep that concern and attention going and growing in the new year.
Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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A Growing List: 2019 Threats to First Amendment Freedoms

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Dangers to our core First Amendment freedoms in the next decade will come through wider use of technology that opens the door for deeper surveillance on citizens, says First Amendment expert Gene Polincinski. Our use of smart phones with GPS and social media allow data sweeps that can tell a lot about our associations.

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"What If We Didn't...?" is a new series from Mic -read more here.
In the months since Donald Trump was elected President of the United States, protesters have taken to the streets to march with signs and chant their frustration; Trump himself has lashed out at criticism, calling critical media the "fake news" and threatening broadcast licenses; and the nation's most popular sport has been gripped by debate over players who "take a knee" to protest police brutality.

The limits of free speech have been tested by an increase in hate speech, as Trump's rise has led to an outcrop of assembly of white nationalists and other far-right extremist groups. On the other side of the political spectrum, college students have sought to shut down hate speech on campuses, which in turn has drawn criticism and legal resistance from Republican lawmakers and free speech advocates.

Everywhere Americans look, the First Amendment is at the center of national conversations about the right way to live in America. Few tenets are as historically ingrained in American society as the First Amendment, but as the US struggles to find the limits and scope of its free speech, it's worth considering: what would the country look like without the broad protections it provides? The possibilities may surprise you.

An American mainstay

The First Amendment has been the backbone of American democracy throughout the country's history. The law is unique around the world in how broad its protections are. It contains only certain narrow exceptions about speech in the US. In addition to exceptions like lying under oath, copyright infringement and the protections afforded by libel and defamation laws, the 1942 Supreme Court case Chaplinsky v. New Hampshire ruled freedom of speech "is not absolute at all times and under all circumstances."

First ratified on Dec. 15, 1791, the Bill of Rights actually came about as a political compromise to quell the criticisms of Antifederalists, who railed against the U.S. Constitution and the massive power it gave to the federal government. Since then, the protections provided by the First Amendment have enabled such historic social developments as the Civil Rights and women's suffrage movements.

The First Amendment has also given cover to the Ku Klux Klan and other hate groups. In 1969, the Supreme Court case Brandenburg v Ohio upheld the First Amendment rights of KKK leader Clarence Brandenburg, who was convicted under Ohio law after speaking at a Klan rally, as his speech was offensive but did not incite violence. More recently, the Supreme Court also ruled the Westboro Baptist Church could protest military funerals.

Freedom of speech, expression and association have historically been at the heart of every successful movement for social change in the U.S.

"Fundamentally, the protection of freedom of expression is necessary to a dynamic society," U.S. Ben Wizener, director of the ACLU's Speech, Privacy and Technology Project said in an interview with Mic. "Ideas that are deeply unpopular in one generation can become conventional wisdom in the next generation, because [the First Amendment's] protection allowed us to push for change."

Freedom of speech around the world

Comparatively to other countries, the First Amendment's protections are uniquely broad.

In 1948, the United Nations General Assembly laid out international rights to many of the First Amendment's protections with its Universal Declaration of Human Rights. However, freedom of speech and expression protections vary wildly among member nations.

In Iran, which Reporters Without Borders dubbed "the world's biggest prison for journalists," speech is heavily restricted. China is known for heavy censorship - popular sites such as Wikipedia, YouTube and Facebook are blacked out during "periods of controversy," and photos, videos and search terms that could be considered to be a "threat to political stability" are blocked. As of 2017, 41 journalists were imprisoned in China, according to the Committee to Protect Journalists.

In Saudi Arabia, blasphemy against Islam and the country's monarchy can be punishable by prison or death. Activist groups have estimated that up to 30,000 dissenters may have been imprisoned for "political purposes" in the country, while others have been sentenced to death.

In Europe, the right to freedom of expression is legally governed through Article 10 of the European Convention on Human Rights. This right, however, is not absolute. Speech and expression protection varies between European countries. Germany protects freedom of speech in its constitution, but inciting hatred against or insulting a national, racial or religious group carries a punishment of up to five years in prison.

More flexible in their approach to freedom of speech are Nordic countries, which have been ranked by the World Press Freedom Index as having the world's best freedom of the press. Laws outlawing specific kinds of expression are also not as strictly defined in such countries as the United Kingdom.

"Freedom of speech and expression in the U.K. is a right enshrined in U.K. common law and by the Human Rights Act," Rachael Jolley, editor of the U.K.-based Index on Censorship magazine, said in an interview with Mic. "Where freedom of expression is controversial or shocking, the courts have made it clear that freedom of expression protections still apply."

Yet these countries still have stricter limits to freedom of speech than the U.S. Hate speech targeting specific groups is illegal in all Nordic countries, as well as in the U.K., whose Public Order Act prohibits "threatening, abusive or insulting" words or behavior that causes another person "harassment, alarm or distress."

The U.K. has additional barriers on free speech; the country's public order laws and the Theatres Act of 1968, which prohibits performances that "provoke a breach of the peace," have resulted in the cancellation of multiple theatrical performances at the advice of police. Britain's libel and defamation laws - which put the onus of defending a claim's accuracy on the defendant - have also made it a primary destination for "libel tourism," in which plaintiffs in libel suits bring charges in countries with laws more favorable to their case. These libel laws put barriers on unflattering speech.

What would happen if Trump repealed the First Amendment?

The U.S. has long enjoyed the broad protections of the First Amendment - but what if these rights were to suddenly disappear? Imagine if Trump and the U.S. government had repealed the Amendment on January 20, 2017 - which would be a difficult feat, requiring the passage of a new amendment approved by both Congress and the states. But if this had happened, the past 16 months likely would have played out quite differently.

Any protests against the president and his policies would likely be quelled. To give an immediate example from the first days of the Trump era, the mass demonstrations at airports across the U.S. in late January 2017 after the announcement of the administration's embattled travel ban, which saw dozens arrested nationwide, would likely have been shut down, or not have occurred at all. And the president's frequent complaints about his critics - gripes over Democrats who didn't applaud during his State of the Union address, or his calls that " treasonous" and " disrespectful" athletes who kneel during the National Anthem should be fired - could go from mere online rants to carrying actual consequences for those who express an opposing point of view.

Nowhere, though, would the effects of a First Amendment repeal possibly be more harshly felt, than on the press. Journalists frequently draw Trump's ire - the president has labeled the media "enemies of the people" and spewed rhetoric against CNN, the New York Times and Washington Post, among many other news outlets.

"It is frankly disgusting the way the press is able to write whatever they want to write," Trump told reporters in Oct. 2017.

Trump's criticisms about the media, however, have already gone beyond just mere complaints. The president sent a cease and desist letter to try and halt the publication of Michael Wolff's book Fire and Fury; threatened to challenge the licenses of NBC and other networks offering critical coverage of the president; and asked his former chief of staff Reince Preibus to look into changing libel laws concerning the press. In May 2017, the New York Times reported that Trump had even asked former FBI Director James Comey to consider jailing journalists who publish classified information.

These attacks by the president on the media have already started to erode public trust in the press. According to a study released in Nov. 2017 by the Poynter Institute, 31% of Americans agree with Trump's description of the media as an "enemy of the people" and believe the media "keep[s] political leaders from doing their job."

"We do have this very strong tradition of the First Amendment, but at the same time, we're seeing the 'fake news' trope being used to denigrate and undermine the value of the press and of journalism in democracy and in holding elected leaders and others accountable," Courtney Radsch, the advocacy director at the Committee to Protect Journalists, said in an interview. "And that's worrying."

But the effects could be worse without strong press freedom protections. If the First Amendment didn't exist, it's possible to imagine that Trump's proposed actions could become a reality. There would no be a barrier preventing stricter libel laws, the government could go after critical news outlets, and journalists who draw the administration's ire could find themselves taken to court - or to jail.

Peter Sterne, managing editor of the U.S. Press Freedom Tracker, predicted that without the First Amendment, Trump would likely ask Congress to enact laws criminalizing the reporting of fake news and lowering the standard for libel.

"If he tried to do that, and especially if Congress was willing to go along with it and pass those kinds of laws, there would be nothing stopping him," Sterne said. "Right now, the First Amendment acts as a barrier to that, because if they try to do that, courts will rule that it's unconstitutional."

Of course, journalism is not completely without risk as it is; 34 arrests of journalists took place in the U.S. in 2017, according to the U.S. Press Freedom Tracker, with 29 arrests taking place at protests. Margeaux Ewen, the North America director of Reporters Without Borders, pointed to these arrests as something else that could become more widespread without freedom of the press.

"One could hypothesize that if the First Amendment were not part of our Constitution, maybe these arrests would be commonplace - but we're already seeing an increase in these arrests while the First Amendment remains untouched," Ewen said in an interview with Mic.

Of course, Trump couldn't do this alone. Many laws concerning press protections, including libel regulations, are enacted at the state level, and Trump's threats to unilaterally force changes to libel laws or challenge broadcast licenses are "not within his purview as president."

"What Trump has threatened to do is hyperbolic, and it's not based in any reality about what the actual process of changing legislation actually entails," Radsch said.

While Congress could go along with Trump's attacks on the press and pass laws that would censor news organizations, or take them to task for defaming public officials, Sterne notes, they could also do nothing and keep freedom of the press intact.

"If the First Amendment were immediately repealed or didn't exist, it doesn't mean that anything would necessarily change," he said. "It just depends on what laws Congress passes and what actions the government takes."

Whatever happens in the U.S., Ewen also noted that a repeal of the First Amendment - or even just a broad disrespect for freedom of the press in America - could have a global effect.

"If the U.S. is in decline in respecting its own ideals, that can only influence further decline the world over, as usually the U.S. has held itself to be a beacon for press freedom and [tried to] influence other countries ... to release journalists and better effect press freedom," Ewen said.

Would hate speech laws curb extremism?

Though the First Amendment's broad protections are deeply entrenched in American values, theoretically, the U.S. could take a harder-line approach to how it regulates and qualifies the freedom of speech.

"The law is as it is because our country has a much different history, both in terms of government structure and in terms of global politics, than other countries," said David Snyder, Executive Director of the First Amendment Coalition.

But what about an alternative history in which the Supreme Court gave a narrower reading of the amendment's protections? A stricter interpretation may have resulted in a European-style system, in which freedoms of speech and expression are guaranteed, but not as sweeping.

If more restrictive policies were in place, speech could be qualified through prohibitions against hate speech - provisions which the Supreme Court ruled unconstitutional as recently as June.

Hate speech legislation in the U.S. would likely be met with some support. The Cato Institute 2017 Free Speech and Tolerance Survey conducted in August found that 40% of respondents believe government should "prevent people from engaging in hate speech against certain groups in public." Further, 56% of survey participants said it's possible to ban hate speech and still protect free speech.

Hate speech laws are particularly popular among American millennials, with 40% supporting government censorship of speech deemed offensive to minorities in a 2015 Pew Research Center study. Hate speech codes have become a flashpoint, especially on college campuses. According to a study released in March by the Knight Foundation, 64% of college students do not believe the First Amendment should protect hate speech.

PEN America Executive Director Suzanne Nossel pointed to different generational attitudes and expectations to explain why younger Americans are particularly against hate speech.

"There are demands for levels of conscientiousness in language that, you know, adults - people over 40 - can kind of scoff at. And yet to students, you know, these seem very real," Nossel in said an interview with NPR. "Ways of characterizing people that were perfectly acceptable a couple of decades ago sound really jarring and really rankle this generation. So I think they are pushing the boundaries."

Hate speech legislation has the potential to help curb organized extremism; in Japan, for example, far-right rallies decreased by nearly half following the country's enactment of hate speech laws in 2016.

Legislation regulating hate speech laws can sometimes backfire, though. A French court ruled in 2013 that LGBT activists could not refer to their opponents as "homophobes" under the country's hate speech laws, convictions under which typically result in fines or suspended sentences, and more infrequently jail time. In Spain, a man was fined in 2015 for calling local police "slackers" on Facebook under the country's gag law, which allows for fines of up to 600,000 Euros for "public order offenses."

In the U.S., the University of Michigan enacted a speech code in 1988 in response to racist acts on campus that included a flier that declared "open season" on black students. The code prohibited behavior that "stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation [or] creed" or that which creates an "intimidating, hostile or demeaning environment."

The university's ban, however, had an unintended effect. Racist incidents on campus continued at the same rate, while white students brought 20 cases of offensive speech against black students.The university's policy was later struck down by a federal district court after a psychology graduate student challenged the policy, over fears his research examining biological differences in personality traits and mental abilities could be considered in violation.

If hate speech laws were enacted in the U.S., effects similar to what was seen in the Michigan case could be even more widespread - particularly in the Trump era, Wizener warned.

"If we had laws that carved out exceptions for hate speech and said hate speech is not protected - and the attorney general of the U.S. is Jeff Sessions - do we think it's likely that it's white supremacists who are going to be prosecuted by those limitations?" Wizener said. "Or is it Black Lives Matter [activists]?

Differences at the margins

A change in freedom of speech laws in the U.S. - especially if modeled on the European laws - could cut down on hate speech on the US while also subjecting minorities to increased prosecution, experts war.

For example, the current rash of laws imposing consequences on companies and other groups who boycott Israel - which Wizener predicts will be ruled unconstitutional - are an example of the kind of law that you would see much more routinely without a strong First Amendment.

"I think that it would very much depend on who's in power, but the kinds of speech that would receive the least protection would be the speech that's the least popular," he said.

When it comes to even broader restrictions on the freedom of expression than what a European-style approach would entail, there may be even harsher effects. Supreme Court rulings that upheld the First Amendment right to burn American flags are one example. Without the First Amendment, criticism of the government could land a protester in jail. Trump has already advocated for this on Twitter.

Limits on the freedom of speech and expression would also impact social justice efforts. The LGBTQ rights movement, for example, couldn't happen in a society "in which provocative discussions about those issues could be prohibited by political majorities."

"There are pretty strong freedom of expression protections in most Western democracies," Snyder said. "The differences are more at the margins. I think a world in which there wasn't strong protection for freedom of expression would be one in which important social change was much slower in coming."

So while the US may be gripped by national debates over the limits and scope of the First Amendments amid greater pushes for social change, Americans remain steadfast in their tolerance of all free speech, more so than any other nation in the world.

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What if we didn't... have the First Amendment?

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"What If We Didn't...?" is a new series from Mic -read more here. In the months since Donald Trump was elected President of the United States, protesters have taken to the streets to march with signs and chant their frustration; Trump himself has...

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Minnesota Voters Alliance vs. Mansky

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The following is a list of all Supreme Court cases since the 2000-2001 term that have involved the First Amendment.
2017-2018 Supreme Court term
Masterpiece Cakeshop v. Colorado Civil Rights Commission (PDF)

The Court's ruling had the effect of permitting a baker to refuse to make a cake for a gay wedding, but only because the Colorado Civil Rights Commission seemed hostile towards religion.

The Court found that the Trump Administration can implement an immigration ban despite evidence that the ban was originally constructed with an intent to discriminate against Muslims.

National Institute of Family Life Advocates v. Becerra (PDF)

The Court ruled that a Californoa law violated the First Amendment by requiring "pro-life" pregnancy centers to provide notices about the availability of abortion services.

The Court found that mandatory union fees for public sector employees violate the First Amendment, even if just for collective bargaining services.

Minnesota Voters Alliance v. Mansky (PDF)

The Court struck down a law prohibiting individuals from wearing political apparel at or near polling places.

Lozman v. City of Riviera Beach, Florida (PDF)

The Court recognized that arrests can have a chilling effect on speech and found that an arrest can be an act of unlawful retaliation by the government, even if it had "probable cause" at the moment for making the arrest.
2016-2017 Supreme Court term
The Court held that a provision of trademark law that prohibits trademarks that disparage the members of a racial or ethnic group violates the Free Speech Clause of the First Amendment

Packingham v. North Carolina (PDF)

The Court ruled that a North Carolina law prohibiting registered sex offenders from accessing social media violates the First Amendment, due to the prominence of social media in modern communication.

Trinity Lutheran Church of Columbia, Inc. v. Comer (PDF)

The Court ruled that excluding religious organizations from otherwise neutral and secular and aid programs violates the Free Exercise Clause of the First Amendment.

Expressions Hair Design v. Schneiderman (PDF)

The Court found that a New York law that prohibits surcharges on credit card transactions (but allows businesses to offer discounts for customers who pay with cash) is a regulation of speech, not just conduct, because such a law regulates how businesses communicate prices to their customers. The Court did not determine whether or not this particular law violated the First Amendment; it remanded the case to the lower court to answer that question.
2015-2016 Supreme Court term
Heffernan v. City of Paterson (PDF)

The Court ruled that a public employee would be protected under the first amendment if an employer issued a demotion to limit their speech.
2014-2015 Supreme Court term
Walker v. Sons of Confederate Veterans (PDF)

The Court held that the government of Texas was entitled to reject a proposal for a license plate featuring a Confederate battle flag, as Texas's specialty license plate designs constitute government speech.

Reed v. Town of Gilbert (PDF)

The Court held that a municipality's sign code provision that imposed more stringent restrictions on signs directing the public to a meeting of a non - profit group were considered to be content - based regulations of speech that couldn't survive strict scrutiny.

Elonis v. United States (PDF)

The Court held that the Third Circuit's instruction of only negligence in the communication of a threat was not sufficient to support a conviction under 18 U.S.C. § 875(c).

Williams-Yulee v. Florida Bar (PDF)

The Court held that Florida's ban on the personal solicitation of campaign funds by candidates for judgeships does not violate the First Amendment.

The Court held that an Arkansas prison policy that prevents a Muslim prisoner from growing a half-inch beard in accordance with his religious beliefs violates the Religious Land Use and Institutionalized Persons Act.
2013-2014 Supreme Court term
Burwell v. Hobby Lobby (PDF)

The Court held that regulations promulgated by the Department of Health and Human Services, as applied to closely held corporations, requiring employers to provide their female employees with no-cost access to contraception violates the Religious Freedom Restoration Act.

McCullen v. Coakley (PDF)

The Court ruled that a Massachusetts law which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility violates the First Amendment.

The Court held that testimony in a criminal prosecution by a government employee about fraud in the program where he works is protected by the First Amendment; however, the supervisor who fired him in retaliation for that testimony has qualified immunity from suit because it was not "beyond debate" that the employee's testimony was protected.

Susan B. Anthony List v. Driehaus (PDF)

The Court held that a preenforcement challenge to an Ohio statute that prohibits certain "false statements" during a political campaign is justiciable, and the challengers have alleged a sufficiently imminent injury for purposes of Article III, when they have pleaded specific statements that they intend to make in future election cycles that are arguably proscribed by the Ohio law and there is a history of past enforcement of the law insofar as one challenger was the subject of a complaint in a recent election cycle.
Town of Greece v. Galloway
The Court held that a town's practice of opening its town board meetings with a prayer offered by members of the clergy does not violate the Establishment Clause when the practice is consistent with the tradition long followed by Congress and state legislatures, the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation with non-adherents.
2012-2013 Supreme Court term
The Court held that Virginia's Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are "fundamental." The Act also does not violate the dormant Commerce Clause: it neither prohibits access to an interstate market nor imposes burdensome regulation on that market; and in any event, a state does not violate the Clause when, having created a market through a state program, it "limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve."

U.S. Agency for International Development v. Alliance for Open Society International (PDF)

The Court held that the requirement that nongovernmental organizations wishing to receive funding from the federal government for HIV and AIDS programs overseas adopt a policy explicitly opposing prostitution violates the First Amendment.
2011-2012 Supreme Court term
The Court held that the petitioners - two Secret Service agents - are entitled to qualified immunity from suit involving a claim that they arrested the respondent in retaliation for remarks he had made about then-Vice President Cheney because, at the time of the arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.

United States v. Alvarez (PDF)

The Court held that the Stolen Valor Act, which makes it a crime to lie about having received military honors or decorations, violates the First Amendment right to freedom of speech.

Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (PDF)

The Court held that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Moreover, because the respondent in this case was a minister within the meaning of the ministerial exception, the First Amendment requires dismissal of her employment discrimination suit against her religious employer.

FCC v. Fox Television Stations (PDF)

The Court held that because the FCC failed to give Fox and ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the FCC's standards as applied to these broadcasts were vague.

The Court held that Section 514 of the Uruguay Round Agreements Act does not exceed Congress's authority under the Copyright Clause.

Knox v. Service Employees International Union (PDF)

The Court held that the structure by which nonmembers of a union have to pay chargeable expenses and must opt out of any others already strains the limits of the First Amendment. The actions of the Service Employees International Union (SEIU) went beyond this allowable extension and infringed upon nonmembers' First Amendment rights. By failing to provide a new notice and a new chance to opt out, the union did not abide by the established procedure for handling nonmember payment. In order to respect the First Amendment rights of nonmembers, the special assessment should have come with a notice that allowed nonmembers to opt in. The Court held that, while it can be difficult to determine the yearly dues ahead of time, the union should err on the side of having nonmembers pay too little rather than too much and infringe on their constitutional rights.
2010-2011 Supreme Court term
The Court held that the First Amendment protects those who stage a peaceful protest on a matter of public concern near the funeral of a military service member from tort liability.

The Court held that California's ban on the sale or rental of violent video games to minors is unconstitutional.

The Court held that the challengers to an Arizona tax credit, which provides tax credits for contributions to tuition organizations, which then use the contributions to provide scholarships for, among others, religious schools, lack standing under Article III because they are challenging a tax credit, rather than government spending.

Milner v. Department of the Navy (PDF)

The Court held that maps describing the location of explosives do not qualify for withholding under Exemption 2 of the Freedom of Information Act, which shields from disclosure only records that relate to employee relations and human resources issues.

The Court upheld NASA's background checks for employees of companies working under contract.

The Court held that when States accept federal funding, States do not consent to waive their sovereign immunity to private lawsuits for money damages under the Religious Land Use and Institutionalized Persons Act.

Federal Communications Commission v. AT&T (PDF)

The Court held that corporations do not have a right of personal privacy for purposes of Exemption 7(C) of the Freedom of Information Act, which protects from disclosure law enforcement records whose disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Borough of Duryea v. Guarnieri (PDF)

The Court held that a government employer's allegedly retaliatory actions against an employee do not give rise to liability under the First Amendment's Petition Clause unless the employee's petition relates to a matter of public concern.

Sorrell v. IMS Health(PDF)

The Court held that Vermont's Prescription Confidentiality Law, which absent the prescriber's consent prohibits the sale of prescriber-identifying information, as well as the disclosure or use of that information for marketing purposes, is subject to heightened judicial scrutiny because it imposes content- and speaker-based burdens on protected expression. Vermont's justifications for the prohibition cannot withstand such heightened scrutiny.

Nevada Commission on Ethics v. Carrigan (PDF)

The Court held that the Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad.

Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (PDF)

The Court reversed the lower court order in a decision by Chief Justice John Roberts. "Arizona's matching funds scheme substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny," the chief justice writing for the majority, noted that the holding does not contend that the First Amendment forbids all public financing. Meanwhile, Justice Elena Kagan dissented, joined by Justices Ruth Bader, Stephen Breyer and Sonia Sotomayor. "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate," Kagan argued, adding: "Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the 'opportunity for free political discussion to the end that government may be responsive to the will of the people.'"
2009-2010 Supreme Court term
Christian Legal Society v. Martinez (PDF)

The Court affirmed the Ninth Circuit, holding that the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum; and, therefore, did not transgress First Amendment limitations. With Justice Ruth Bader Ginsburg writing for the majority, the Court reasoned that the same considerations that have led the Court to apply a less restrictive level of scrutiny to speech in limited public forums, counseled the same result in this case. The Court further reasoned that, considering this constitutional inquiry occurs in the education context, Hasting's all-comers policy is reasonable and viewpoint neutral.

Citizens United v. Federal Election Commission (PDF)

The Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited.

The Court affirmed the Ninth Circuit, holding that the disclosure of referendum petitions does not as a general matter violate the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that an "exacting scrutiny standard" is the appropriate standard for determining First Amendment challenges in the electoral context. The standard requires a "substantial relation" between the disclosure requirement and a "sufficiently important" governmental interest. Here, the state met its burden in establishing that its disclosure requirement was constitutional.

Holder, Attorney General v. Humanitarian Law Project (PDF)

The Court held that the material support provision of the AEDPA is constitutional as applied to the particular forms of support that the plaintiffs seek to provide to terrorist organizations. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that, as applied, the provision in question is not vague. Here, the statutory terms at issue - "training," "expert advice or assistance," "service," and "personnel" - are not similar to terms like "annoying" and "indecent" that the Court has struck down as being too vague. The Court recognized that the statute may not be clear in every respect, but it is clear enough with respect to the plaintiffs in this case.

Milavetz, Gallop, & Milavetz, P.A., et al. v. United States (PDF)

The Court held that attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the BAPCPA. The Court further held that § 526(a)(4) of the BAPCPA is not an overly broad, content based restriction on attorney-client communications. Rather, the Court reasoned that it merely prohibits a debt relief agency only from advising a debtor to incur more debt because the debtor is filing for bankruptcy. Lastly, the Court held that § 528's disclosure requirements are valid as applied to Mr. Milavetz. The Court reasoned that the disclosure requirements do not act as an affirmative limitation on speech and are reasonably related to the government's interest in preventing consumer deception.

Salazar (Interior Secretary) v. Buono (PDF)

The Court reversed the Ninth Circuit. With Justice Anthony M. Kennedy writing for the plurality, the Court held that Mr. Buono has standing to maintain this action. Justice Kennedy reasoned that when a party obtains a judgment in its favor, like Mr. Buono, it acquires a "judicially cognizable" interest in ensuring compliance with that judgment. The plurality also held that the district court erred in preventing the government from implementing the land-transfer statute in order to protect Mr. Buono's rights. A court may not order an injunction when

it fails to consider all the circumstances bearing on the need for preventive relief. The district court failed to consider the context in which the land-transfer statute was enacted. Justice Kennedy concluded that upon remand the court should conduct a proper inquiry into the continued need for preventive relief in light of the statute.

United States v. Stevens (PDF)

The Court held that 18 U.S.C. § 48 is substantially overbroad, and therefore invalid under the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that depictions of animal cruelty are not categorically unprotected by the First Amendment. The Court further reasoned that because a "substantial number" of § 48's applications are unconstitutional, the law is overbroad and, thus, invalid.
2008-2009 Supreme Court term
The Court held that the Second Circuit had jurisdiction to affirm the district court's order denying the defendants' motion to dismiss Mr. Iqbal's claim. However, the Court also held that Mr. Iqbal failed to plead sufficient facts to state a claim for unlawful discrimination. With Justice Anthony M. Kennedy writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Clarence Thomas, and Samuel A. Alito, the Court reasoned that Mr. Iqbal needed to plead sufficient facts to show that the defendants implemented their policies for the purpose of discrimination. Mr. Iqbal did not do this and thus his complaint was deficient. The Court remanded the case for the district court to determine whether Mr. Iqbal may amend his complaint.

Federal Communications Commission v. Fox Television Stations, Inc.(PDF)

The Court held that the FCC's order was neither "arbitrary" nor "capricious." Justice Antonin G. Scalia announced the judgment of the court in which Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito joined in part, reasoning that the FCC need not prove that its change in policy is "better" than its prior stance. Rather, the FCC need merely prove that its new policy is "permissible" and that there are good reasons for it, as in this case.

The Court held that the First Amendment permits a local union to charge nonmembers for national litigation expenses so long as 1) the subject matter is of a kind that would be chargeable if the litigation were local and 2) the charge is reciprocal in nature (the contributing local union reasonably expects other local unions to contribute similarly). The Court reasoned that the fees paid by nonmembers of the Maine State Employees Association that funded national litigation expenses met this test and therefore did not violate nonmembers' First Amendment rights.

Pleasant Grove City, Utah, et al. v. Summum (PDF)

The Court reversed the Tenth Circuit holding that the placement of a monument in a public park is a form of government speech and therefore not subject to scrutiny under the Free Speech Clause of the First Amendment. With Justice Samuel A. Alito writing for the majority and joined by Chief Justice John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer, the Court reasoned that since Pleasant Grove City had retained final authority over which monuments were displayed, the monuments represented an expression of the city's viewpoints and thus government speech.

Ysursa v. Pocatello Education Association, et al. (PDF)

The Court reversed the Ninth Circuit holding that Idaho's Voluntary Contributions Act did not violate the free speech rights of local government employees. With Chief Justice John G. Roberts writing for the majority and joined by Justice Antonin G. Scalia, Justice Anthony M. Kennedy, Justice Clarence Thomas, and Justice Samuel A. Alito, and Justice Ruth Bader Ginsburg in part, the Court reasoned that Idaho's law did not restrict political speech, but merely declined to promote speech by prohibiting public employees from directly contributing to partisan activities from their government issued paycheck. Using a rational-basis review, it recognized that the state had a reasonable interest in avoiding the appearance of impropriety by banning the funding of partisan political activity from the state's payroll. Moreover, the Court held that this governmental interest applied equally to governments at the state and local level.

Ali v. Federal Bureau of Prisons (PDF)

The court held that the Federal Bureau of Prisons officers who allegedly lost inmate's personal property during his transfer to another prison were "law enforcement officers" as that term was used in provision of the Federal Torts Claim Act excepting from waiver of federal government's sovereign immunity from liability for negligent or wrongful acts of its employees any claim arising with respect to "detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer."

Chamber of Commerce of the United States v. Brown (PDF)

The Court held the California laws preempted by the National Labor Relations Act because the state laws regulated within "a zone protected and reserved for market freedom." Justice John Paul Stevens, writing for the Court, viewed the Act as showing a "congressional intent to encourage free debate on issues dividing labor and management." Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the California laws dealt with funding, not regulation, and did not impermissibly discourage labor-related speech. Employers are still free under the laws to spend their own money on such speech.

The Court upheld the law, concluding that the photo I.D. requirement was closely related to Indiana's legitimate state interests in preventing voter fraud. The slight burden the law imposed on voters' rights did not outweigh these interests, which the Court characterized as "neutral and nondiscriminatory." Although there was no majority opinion, the Court's decision included concurring opinions written by Justices John Paul Stevens and Antonin Scalia. Justices David Souter and Stephen Breyer each wrote dissenting opinions. Justice Ruth Bader Ginsburg joined Justice Souter's dissent.

Davis v. Federal Election Commission (PDF)

The Court held that the contribution limits violated the First Amendment. In his majority opinion, Justice Samuel Alito noted that the Court had never upheld the constitutionality of a law imposing different contribution limits for candidates competing against one another. Because the Court found the laws in violation of the First Amendment, it did not reach the question of whether the Fifth Amendment was also violated. Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, filed an opinion concurring in part and dissenting in part, agreeing with the majority that Davis had standing but citing the reasoning of the district court to argue that the contribution cap did not violate the First or Fifth Amendment. Justice Ginsburg, joined by Justice Breyer, wrote a separate opinion concurring in part and dissenting in part, agreeing with Justice Stevens's argument but basing it on slightly different grounds.

New York State Board of Elections v. Lopez Torres (PDF)

The Court reversed the Second Circuit, finding that the election scheme did not implicate Lopez Torres' rights under the First Amendment. What constituted a "fair shot" at obtaining the nomination, according to the Court, was a reasonable enough question for legislative judgment, which the Court would accept so long as it did not too much infringe upon a party's associational rights. The Court maintained that the First Amendment did not compel any substantive change in New York's practice of electing judicial officials.

The Court held that such "nonparty preclusion" runs up against the "deep-rooted historic tradition that everyone should have his own day in court." Virtual representation should only be applied rarely and under certain exceptions to the general rule, none of which the Court found applicable in this case. The D.C. Circuit's decision was vacated and the case sent back to the district court for a new trial.

United States v. Williams (PDF)

The Court held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators. Justice David Souter filed the only dissenting opinion, in which Justice Ruth Bader Ginsburg joined.
Washington State Grange v. Washington State Republican Party (consolidated with Washington et al. v. Washington State Republican Party et al.) (PDF) 2006-2007 Supreme Court term
The Court reversed the Ninth Circuit's ruling and held the party affiliation provision constitutional. Writing for the majority, Justice Clarence Thomas explained that the state law never referred to the candidates as nominees of any particular party. Rather, the nominees were simply asserting which party they preferred to be associated with, and the Court found no convincing evidence that this association would lead voters to believe that the particular party actually endorsed the nominee. Chief Justice John G. Roberts concurred in the judgment, joined by Justice Samuel Alito. Justice Antonin Scalia filed a dissenting opinion, joined by Justice Anthony Kennedy.

The Court reversed the Ninth Circuit and ruled that the state court's decision was not an unreasonable application of any clearly established Supreme Court precedent. The Court did not explicitly say that Circuit Courts cannot cite their own Circuit precedents when granting habeas relief, but the Court only addressed the Supreme Court precedents cited by the Ninth Circuit. Those precedents only dealt with government-sponsored practices that may prejudice a jury, such as forcing a defendant to appear in court wearing prison clothing. The Court's opinion called the issue of spectator conduct, like the kind at issue in Musladin's trial, an "open question in our jurisprudence." Since there was no clearly established federal law on the issue of spectator conduct, the Court held that the Ninth Circuit was wrong to grant habeas relief and overturn Musladin's conviction.

The Court ruled that the First Amendment allows a state to require public-sector unions collecting "agency-shop" fees from non-union employees to obtain permission from the employees before using the money for political purposes. The Court's opinion held that "[...] unions have no constitutional entitlement to the fees of nonmember-employees." It would be constitutional for a state to eliminate agency-shop fees altogether, and it is likewise constitutional for a state to take the lesser step of requiring permission from non-union employees before their fees are used for political purposes. The Court faulted the Washington Supreme Court for misinterpreting the Court's precedents as requiring that the burden always be on the objecting employee. The Court concluded that the law was viewpoint-neutral and that it did not suppress any political ideas, since it involved a limitation on how unions can obtain money from non-members and not a limitation how they can choose spend it once they have it. Thus, the Court held that the union's First Amendment right was not abridged by the permission requirement.

The Court ruled that it had no jurisdiction to hear Senator Dayton's appeal and dismissed the case without reaching the merits. Justice John Paul Stevens wrote the opinion for the 8-0 Court. The Congressional Accountability Act of 1995 only authorizes direct Supreme Court appeal of rulings "upon the constitutionality" of the statute. The Justices held that the decisions of the lower courts (holding that Hanson's suit should not be dismissed under the Speech or Debate Clause) did not qualify as rulings on the constitutional validity of the Act. They were better characterized as rulings on the Act's scope. Direct appeal was therefore not authorized by the Act, and the Court declined to grant certiorari.

The Court ruled that BCRA's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's. Chief Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.

Hein v. Freedom from Religion Foundation, et al. (PDF)

The Court ruled that citizens do not have standing as taxpayers to bring Establishment Clause challenges against Executive Branch programs that are funded by appropriations for general administrative expenses. Justice Samuel Alito's plurality opinion called Flast v. Cohen a "narrow exception" to the general rule that taxpayer status does not grant standing to sue the government, and held that Flast did not support the Seventh Circuit's broad interpretation. In order to have standing under Flast, a taxpayer must not only challenge a policy on the basis of the Establishment Clause, but also bring the challenge against a congressional expenditure. Since no specific congressional appropriation was implicated in the suit, the Court ruled that there was no "Case or Controversy" under the Flast exception. To extend Flast to executive actions, the Court said, would threaten the separation of powers by relaxing the doctrine of standing and turning federal courts into "general complaint bureaus." In a separate concurring opinion, Justice Scalia called the plurality's distinction "utterly meaningless," and argued that Flast should be overruled. Justice Souter argued in dissent that "When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury."

Morse et al. v. Frederick (PDF)

The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]."

Tennessee Secondary School Athletic Assoc. v. Brentwood Academy (PDF)
2005-2006 Supreme Court term
The Court held that the pervasive entwinement of state school officials in the ostensibly private organization, which regulated school sports, and the state education board's acknowledgment of the organization, indicated that the organization is a state actor for civil rights purposes. "The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it," wrote Justice Souter for the majority. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy joined Justice Clarence Thomas' dissent.

The Court reversed the Third Circuit and upheld the prison's policy. The plurality opinion by Justice Breyer held that Banks had failed to present sufficient evidence that the prison had acted unreasonably in denying newspapers, magazines, and photographs to its most troublesome inmates. The Court found that the policy met the four-part test established in Turner v. Safley : (1) it was rationally related to the legitimate penological goal of motivating good behavior; (2) though prisoners had no alternate means of exercising their rights, they could potentially graduate to the less-restrictive level 1; (3) accommodating prisoners' rights could result in negative consequences (worse behavior); and (4) there was no alternate means of accomplishing the prison's goals without restricting the prisoners' rights. Justice Thomas concurred separately in an opinion joined by Justice Scalia, arguing that "This case reveals the shortcomings of the Turner framework." Justices Stevens and Ginsburg both wrote dissents. Justice Stevens called the policy "perilously close to a state-sponsored effort at mind control," while Justice Ginsburg criticized the high evidentiary burden the plurality placed on the prisoners. Justice Alito took no part in the decision of this case.

Garcetti v. Ceballos (PDF)

The Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties. Ceballos's employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties. "The fact that his duties sometimes required him to speak or write," Justice Kennedy wrote, "does not mean his supervisors were prohibited from evaluating his performance." Justices Stevens, Souter, Ginsburg and Breyer dissented.

Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (PDF)

The Court held that the government had failed to prove a compelling interest in regulating the UDV's use of drugs for religious purposes. Writing for the Court, Chief Justice John Roberts rejected the government's argument that the Controlled Substances Act could accommodate no exceptions. On the contrary, Justice Roberts wrote, the Court is required by the RFRA to examine individual religious freedom claims and grant exceptions to generally-applicable laws where no compelling government interest can be shown.

The Court also rejected the argument that an exception for UDV was precluded by international treaty. The government failed to submit "evidence addressing the international consequences of granting an exemption for the UDV," instead citing "the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs." The Court held that such general government interests were not sufficient to satisfy the compelling interest standard.

Randall v. Sorrell (consolidated with Sorrell v. Randall and Vermont Republican State Committee, et al., v. Sorrell) (PDF)

The Court reversed the Circuit Court and invalidated Vermont's Act 64 by a 6-3 vote. The opinion by Justice Stephen Breyer held that the Court should let stand the Buckley decision and its invalidation of expenditure limits. Vermont's argument that such limits prevent candidates from spending too much time fund-raising was deemed irrelevant because it was "perfectly obvious" and would not have changed the result in Buckley. The Court affirmed that some limits on political contributions are constitutional, but perceived "danger signs" indicating that Vermont's exceptionally low limits could prevent candidates from campaigning effectively. Applying a 5-part test, the Court held that Vermont's contribution limits were "disproportionate to the public purposes they were enacted to advance." Justice Souter wrote a dissent, joined by Justices Ginsburg and Stevens, in which he argued that the contribution limits should be upheld and the expenditure limits should be referred to the lower courts for a determination of whether they were the "least restrictive means" of accomplishing Vermont's goals. Justice Stevens wrote a separate dissent arguing that Buckley should be overruled as it pertains to expenditure limits.

Rumsfeld v. Forum for Academic & Institutional Rights (PDF)

The Court held that the Solomon Amendment regulated conduct, not speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds."

The Court held that: (1) defendants did not "obtain" or attempt to obtain property from plaintiffs, and so did not commit extortion under the Hobbs Act; (2) because defendants did not obtain or attempt to obtain property from plaintiffs, plaintiffs' state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed; and (3) claims of violations of the Travel Act and attempts to violate that Act also failed.

Wisconsin Right to Life Inc. v. Federal Election Commission (PDF)
2004-2005 Supreme Court term
The Court ruled that BCRA's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's. Chief Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.

City of San Diego v. Roe (PDF)

The Court held that firing Roe for his behavior and "speech" did not violate the First Amendment. Government employers, the Court wrote, could restrict their employees' speech in ways that would be unconstitutional if applied to the general public. But government employees had the right to speak on matters of public concern, such as on government policies of interest to the public. In this case, however, Roe's activities did not inform the public about the police department and were also detrimental to the force.

The Court held that Oklahoma's semiclosed primary system did not violate the right to freedom of association and that any burden it imposed was minor and justified by legitimate state interests. The Court noted that not every electoral law burdening associational rights was subject to strict scrutiny. Requiring voters to register with a party before participating in its primary minimally burdened voters' associational rights. Moreover, Oklahoma's primary advanced a number of state interests, including the preservation of parties as viable and identifiable interest groups.

Cutter v. Wilkinson (PDF)

The Court held that, on its face, RLUIPA made an accommodation allowed by the First Amendment. The Court reasoned that the law was an effort to alleviate the "government-created burden" on religious exercise that prisoners faced. Nor did section three discriminate between mainstream and non-mainstream religions. The Court did point out that constitutional problems could arise if RLUIPA were enforced improperly and religious prisoners received favored treatment, or if religious exercise and security concerns were not properly balanced.

Jackson v. Birmingham Board of Education (PDF)

The Court held that Title IX allowed suits alleging retaliation for reporting sex discrimination. Such retaliation, the majority reasoned, constituted intentional discrimination on the basis of sex in violation of Title IX. Jackson therefore had the right under Title IX to pursue his claim in court.

the Court held that the fund was for government speech and that therefore the government could not be sued under the First Amendment. The Court pointed to the rule that while compelled funding of private speech raises First Amendment concerns, compelled funding of government speech generally does not.

McCreary County, Ky. v. ACLU of Kentucky (PDF)

The Court held that the displays violated the establishment clause because their purpose had been to advance religion. In the case of each of the displays, the Court held, an observer would have concluded that the government was endorsing religion. The first display for presenting the Ten Commandments in isolation; the second for showing the Commandments along with other religious passages; the third for presenting the Commandments in a presentation of the "Foundations of American Law," an exhibit in which the county reached "for any way to keep a religious document on the walls of courthouses."

Rumsfeld v. Forum for Academic & Institutional Rights (PDF)

The Court held that the Solomon Amendment regulated conduct, not speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds."

The Court held that Cochran's death diminished the grounds for the judge's order and that the order therefore amounted to an overly broad prior restraint on speech. Tory could no longer try to force Cochran to pay him in exchange for desisting, the Court reasoned, ending the order's underlying justification.
2003-2004 Supreme Court term
The Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause."

The Court found that Congress had not yet met its burden to show that the COPA requirements were more effective than other methods of preventing minors. Justice Anthony Kennedy, in the majority opinion, wrote that the district court's injunction "was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute." The majority also emphasized that barring the statute's enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material.

Cheney v. United States District Court (PDF)

The Court sent the case back to the D.C. Court of Appeals, arguing that the appellate court should have considered separation-of-powers claims and was wrong to conclude it lacked authority to order District Court discovery to stop. Such an order (mandamus) to stop discovery proceedings should be considered because those proceedings, "by virtue of their overbreadth," could interfere with presidential activity. Further, the appellate court misinterpreted U.S. v. Nixon to mean that the government needed to assert executive privilege for separation-of-powers objections to be considered.

City of Littleton v. Z.J. Gifts (PDF)

The Court held that Colorado did not have to explicitly provide for a "prompt judicial determination" to make the law constitutional. As long as Colorado courts did not unnecessarily delay such claims, the normal judicial review process could be expected to provide a decision quickly enough to satisfy the constitutional demands. If the courts failed to make a prompt decision in a specific case, the business in that particular case could sue, but the absence of explicit "prompt judicial determination" language in the statute did not make it unconstitutional.

The Court held that the Privacy Act requires plaintiffs prove actual damages to qualify for the minimum statutory award of $1000. The Court reasoned that "a straightforward textual analysis" of the Privacy Act shows that the statute guarantees the $1000 minimum for victims of willful Privacy Act violations only in relation to "actual damages sustained." Individuals subjected to an adverse effect - like the miners in this case - have "injury enough to open the courthouse door, but without more" have "no cause of action for damages under the Privacy Act."

Elk Grove Unified School District v. Newdow (PDF)

The Court found that Newdow did not have standing to bring suit because he did not have sufficient custody over his daughter. "When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Justice Stevens wrote. Because it found that Newdow did not have standing, the Court failed to reach the constitutional question. Chief Justice Renquist and Justices Sandra Day O'Connor and Clarence Thomas all wrote seperate concurrences, saying that requiring teachers to lead the Pledge is constitutional.

The Court ruled that a state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors. The Court rejected Davey's argument that the state scholarship program is unconstitutional because it is not neutral toward religion. "The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause. Unlike laws and programs the Court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution "suggests animus towards religion." States have a "historic and substantial interest" in excluding religious activity from public funding.

McConnell v. Federal Election Commission (PDF)

The Court held that: (1) political parties and candidates could be banned from using "soft money" for federal election activities; (2) ban on party donations to tax-exempt entities was generally valid; (3) "soft money" could not be used for issue ads which clearly identified candidate; (4) statutory definition of "electioneering communications" was valid; (5) cost of third-party issue ads coordinated with federal candidates' campaigns could validly be considered as contributions to those campaigns; (6) labor unions and corporations were generally required to pay for issue ads from separately segregated funds; (7) prohibition on political donations by minors was invalid; and (8) requirement that broadcasters disclose records of requests for air time for political ads was valid.

National Archives and Records Administration v. Favish (PDF)

The Court held that the Foster family's interest in privacy outweighed the public interest in seeing pictures from Vincent Foster's death scene. The public interest could only trump privacy interests if Favish could present evidence that the government might have acted improperly. Favish failed to do so. The Court acknowledged that citizens seeking access to documents under the Freedom of Information Act normally need not explain why they seek the information. The act, however, exempts from disclosure records that would present an unwarranted invasion of privacy. In ruling that the act protected the privacy of the Foster family, the Court rejected Favish's argument that the act only protected Vincent Foster's privacy (an interest that Favish argued died with Foster).

Washington et al. v. Washington State Republican Party et al. (PDF)
2002-2003 Supreme Court term
The Court reversed the Ninth Circuit's ruling and held the party affiliation provision constitutional. Writing for the majority, Justice Clarence Thomas explained that the state law never referred to the candidates as nominees of any particular party. Rather, the nominees were simply asserting which party they preferred to be associated with, and the Court found no convincing evidence that this association would lead voters to believe that the particular party actually endorsed the nominee. Chief Justice John G. Roberts concurred in the judgment, joined by Justice Samuel Alito. Justice Antonin Scalia filed a dissenting opinion, joined by Justice Anthony Kennedy.
Federal Election Commission v. Beaumont
The Court held that Congress acted within its authority and did not transgress constitutional limitations in placing existing and future copyrights in parity in the CTEA. Disagreeing with the argument that a copyright once set is fixed, the majority found that the CTEA "continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes," and is a permissible exercise of Congress's power under the Copyright Clause. Moreover, the Court held that the CTEA's extension of existing and future copyrights does not violate the First Amendment. Justices John Paul Stevens and Stephen G. Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests.
Madigan v. Telemarketing Associates, Inc.
The Court held that application of provisions and regulations barring direct corporate campaign contributions to nonprofit advocacy corporation was consistent with the First Amendment.

The Court held that the First Amendment did not bar fraud claims asserted under Illinois law against professional fundraisers hired by charitable organization, where claims were based on allegations that fundraisers made false or misleading representations designed to deceive donors about how their donations would be used.

The Court did not answer the question dismissing the writ of certiorari as improvidently granted. Justice Anthony M. Kennedy dissented. Justice Stephen G. Breyer, joined by Justice Sandra Day O'Connor, dissented. Justice Breyer argued that no jurisdictional rule prevented the Court from decided the case and that "delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on."
Pierce County v. Guillen
The Court held that the MDOC's regulations were valid. The Court reasoned that the fact that the regulations bear a rational relation to legitimate penological interests suffices to sustain them regardless of whether the prisoners have a constitutional right of association that has survived incarceration. The Court also concluded that the visitation restriction for inmates with two substance-abuse violations is not a cruel and unusual confinement condition violating the Eighth Amendment. The Court reasoned that withdrawing visitation privileges for a limited period is not a dramatic departure from accepted standards for confinement conditions. Justice Clarence Thomas, joined by Justice Antonin Scalia, filed an opinion concurring in the judgment.
United States v. American Library Association, Inc.
The Court held that both the original program and its subsequent amendments fall within Congress's Commerce Clause power to "'regulate the use of the channels of interstate commerce'" and "'to regulate and protect the instrumentalities of interstate commerce.'" The Court concluded that, because Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the Program's information-gathering requirement would result in greater safety on the nation's roads, the legislation was aimed at improving safety in the channels of commerce and increasing protections for the instrumentalities of interstate commerce.

The Court held that, because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution and is a valid exercise of Congress's spending power. Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas joined the Chief Justice's opinion. Justices Anthony M. Kennedy and Stephen G. Breyer filed opinions concurring in the judgment. Both noted that CIPA imposed a comparatively small burden on library Internet users that was not disproportionate to any potential speech-related harm, especially in light of the libraries' ability to unblock sites. Justices John Paul Stevens and David H. Souter dissented. Justice Ruth Bader Ginsburg joined Justice Souter's dissent.
2001-2002 Supreme Court term Ashcroft v. Free Speech Coalition
The Court held that the RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. Noting that he was not in Whitcomb Court to engage in constitutionally protected speech, the Court reasoned that Hicks had not shown that the RRHA policy prohibited a substantial amount of protected speech in relation to its many legitimate applications. Justice Scalia wrote, "both the notice-barment rule and the 'legitimate business or social purpose' rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression."
BE&K Construction Co. v. NLRB
The Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy.

The Court held that the Board lacked authority to assess liability under the standard of prosecuting an unsuccessful suit with a retaliatory motive. The Court reasoned that the Board's definition of a retaliatory suit as one brought with a motive to interfere with the exercise of protected NLRA rights covers a substantial amount of genuine petitioning. "Because there is nothing in the statutory text indicating that [the NLRA] must be read to reach all reasonably based but unsuccessful suits filed with a retaliatory purpose, we decline to do so. Because the Board's standard for imposing liability under the NLRA allows it to penalize such suits, its standard is thus invalid," wrote Justice O'Connor.
City of Los Angeles v. Alameda Books
The Court held that Harbury had not stated a claim for denial of judicial access. The Court reasoned that Harbury's complaint failed to identify the underlying cause of action for relief that she would have raised had it not been for the alleged deception. Moreover, the Court noted that Harbury's informal amendment accepted by the Court of Appeals failed to seek any relief presently available for denial of access to courts that would be unavailable otherwise. "It is true that [Harbury] cannot obtain in any present tort action the order she would have sought before her husband's death, the order that might have saved her husband's life. But neither can she obtain any such order on her access claim, which therefore cannot recompense Harbury for the unique loss she claims as a consequence of her inability to bring an intentional-infliction action earlier," wrote Justice Souter. Justice Clarence Thomas concurred in the judgment.
Republican Party of Minnesota v. White
The Court held that the city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of section 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime. Three other Justices joined in this holding. Concurring, Justice Anthony M. Kennedy concluded that Los Angeles may impose its regulation in the exercise of the zoning authority, and that the city is not, at least, to be foreclosed by summary judgment. Justice David H. Souter, with whom Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer joined, dissented. Justice Souter argued that the 1977 study, while pursuing a policy of dispersing adult establishments, evolved to a policy of breaking-up combined bookstores/video arcades, for which the study's evidence was insufficient.
Thomas v. Chicago Park District
The Court held that the announce clause violates the First Amendment. The Court reasoned that the announce clause prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms - speech about the qualifications of candidates for public office. Moreover, the Court concluded that the clause did not serve to preserve the state judiciary's impartiality, its argued compelling state interest. "There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits," wrote Justice Scalia.
Thompson v. Western States Medical Center
The Court held that the First Amendment free speech guarantee does not require the Park District to initiate litigation every time the agency denied a permit for an event or specify a deadline for judicial review of a challenge to the denial of a permit. The Court reasoned that the licensing scheme was not based on subject-matter censorship, but rather content-neutral time, place, and manner regulation of the use of a public forum thus making the ordinance constitutional. "On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech," wrote Justice Scalia for the Court.
Watchtower Bible & Tract Society v. Village of Stratton
The Court held that the FDAMA's provisions amounted to unconstitutional restrictions on commercial speech. Among other findings, the Court reasoned that, although the speech restrictions allegedly served governmental interests in permitting drug compounding while guaranteeing that compounding was not conducted on such a scale as to undermine the drug approval process, it had not been demonstrated that the speech restrictions were not more extensive than necessary to serve such interests. Justice Thomas Clarence filed a concurring opinion. Justice Stephen G. Breyer, joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens and Ruth Bader Ginsburg, filed a dissenting opinion.
Zelman v. Simmons-Harris
The Court held that the ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. The Court reasoned that the village's interest in preventing fraud could not support the ordinance's application to the religious organizations, to political campaigns, or to enlisting support for unpopular causes. Dissenting, Chief Justice William H. Rehnquist argued that the Court decision deprived Stratton residents of the degree of accountability and safety that the permit requirement provides.
2000-2001 Supreme Court term
The Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."
Good News Club v. Milford Central School
The Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. "In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance," wrote Justice Stevens. "[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the "debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, but it is no less worthy of constitutional protection."
Legal Services Corporation v. Velazquez
The Court held that "Milford's restriction violates the Club's free speech rights and that no Establishment Clause concern justifies that violation." "When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment," wrote Justice Thomas.

The Court held that the funding provision that limited arguments legal services attorneys were allowed to make on behalf of indigent welfare claimants violated the First Amendment by regulating private speech and insulating federal law from legitimate judicial challenge. Justice Kennedy wrote for that Court that, "the LSC program was designed to facilitate private speech, not to promote a governmental message." Justice Antonin Scalia wrote a dissent, which was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, arguing that the Appropriations Act "does not directly regulate speech, and it neither establishes a public forum nor discriminates on the basis of viewpoint."

The Court held that the FCLAA preempts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising and that Massachusetts' outdoor and point-of-sale advertising regulations related to smokeless tobacco and cigars violate the First Amendment, but that the sales practices regulations related to all three tobacco products are constitutional. "We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State's substantial interest in preventing underage tobacco use," wrote Justice O'Connor.
United States v. United Foods, Inc.
The Court held that inmates do not possess a special First Amendment right to provide legal assistance to fellow inmates that enhances the protections otherwise available. "Augmenting First Amendment protection for inmate legal advice would undermine prison officials' ability to address the 'complex and intractable' problems of prison administration," wrote Justice Thomas for the Court. Justice Thomas added that "[p]risoners have used legal correspondence as a means for passing contraband and communicating instructions on how to manufacture drugs or weapons." Justice Ruth Bader Ginsburg also wrote a concurring opinion.

The Court held that the assessment requirement violates the First Amendment. Justice Kennedy wore for the Court that "the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity." "We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself," continued Justice Kennedy.

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The following is a list of all Supreme Court cases since the 2000-2001 term that have involved the First Amendment. 2017-2018 Supreme Court term Masterpiece Cakeshop v. Colorado Civil Rights Commission (PDF) The Court's ruling had the effect of permitting a baker to refuse to make a cake for a gay wedding, but only because the Colorado Civil Rights Commission seemed hostile towards religion.